In United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) the N-MCCA had to determine whether the military judge committed plain error by not declaring the charges of receipt and possession of child pornography multiplicious? The Court ruled that these two specifications were not facially duplicative and so military judge did not commit plain error in failing to dismiss these specifications as multiplicious. First, the Court reasoned that the conduct of possessing the media was separate from the receipt of the media. Next, citing United States v. Campbell, 66 M.M. 578, 581 (N-M. Ct. Crim. App. 2008) and United States v. Planck, 493 F.3d 501, 504 (5th Cir. 2007), the Court observed that, after receiving the image, “he duplicated and embedded some of the images into media on which they were not then present.” Though the images on the hard drive “might appear identical to the originals when viewed, the duplicates on the CD are separate electronic files, created by [the accused], and embedded into different media.” The charges of receipt and possession “address at least two criminal actions by the [accused] each of which happened at a different time within the charged time period and involved separate media.” -------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
Effective 6 January 2006, Congress amended Article 43(a), which now provides: “A person charged with absence without leave or missing movement in time of war, with murder, rape, or rape of a child, or with any other offense punishable by death, may be tried and punished at any time without limitation.” In United States v. Toussant, No. 20080962 (A. Ct. Crim. App. 2008), the charges at issue included two specifications of rape of a child under Art. 120. The first specification covered conduct that allegedly happened on divers occasions between 1 October 1997 and 31 December 2000. The second specification covered conduct that allegedly happened on divers occasions between 1 January 2001 and 31 December 2003. The SCMCA received the charges on 28 February 2008. At the time of the offense, Art. 43 read, in relevant part, “[a] person charged . . . with any offense punishable by death, may be tried and punished at any time without limitation.” On defense motion, the military judge dismissed these two specifications as time barred. The military judge reasoned that the Supreme Court, in Kennedy v. Louisiana, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008) ruled that death was an unconstitutional penalty for rape of a child in civilian jurisdictions and, if properly presented, would have applied this ruling to the military. Hence, the rape of a child was not punishable by death, and therefore, the 5-year statute of limitations had expired. The Government then filed a timely Art. 62 appeal. The ACCA concluded that the military judge erred by dismissing these two specifications. First, the Supreme Court expressly limited its decision in Kennedy v. Louisiana to civilian jurisdictions. Next, in Willenbring v. Neurater, 48 M.J. 152 (C.A.A.F. 1998), the CAAF specifically noted that rape is “an offense punishable by death for purposes of exempting it from the 5-year statute of limitations” and “the question of whether the death penalty may be imposed, given the facts and circumstances off any particular case, does not control the statute of limitations issue.” -------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
In United States v. Yanger, 67 M.J. 56 (C.A.A.F. 2008), the CAAF details the elements of self defense. The accused was a Coast Guard enlisted member. One day when returning from a drug purchase, he was confronted by his wife who was holding the stem of a broken wine glass. The two fought and the accused pushed his wife away. She stumbled, fell, and stabbed herself in the neck with the wineglass. She subsequently died and the accused pled guilty to involuntary manslaughter. The CGCCA ruled the guilty plea as improvident, noting that the military judge erred by not explaining the elements of self-defense during the providence inquiry. CGCCA’s ruling was reversed by the CAAF. The CAAF concluded that there was no substantial basis in law or fact for rejecting the plea. The elements of self-defense require that the accused: (1) apprehend, on reasonable grounds, that bodily harm was about to be inflicted wrongfully on the accused; and (2) believe that the force the accused used was needed for protection against bodily harm, provided that the force used by the accused was less than force reasonable likely to produce death or grievous bodily harm. At the providence inquiry, the accused’s responses were “unambiguous.” He did not feel threatened by his wife, he did not apprehend bodily harm, and he did not believe that shoving his wife was required for his own protection. So, “the possibility of self-defense was resolved by this inquiry.”
8. Does R.C.M. 905(g) prevent the prosecution of an accused who is acquitted after allegedly committing perjury at his court-martial and allegedly enlisting the assistance of a confederate to commit perjury at the accused’s court-martial?
United States v. Harris, 67 M.J. 611 (A.F. Ct. Crim. App. 2009) discusses the issue of whether R.C.M. 905(g) bars the prosecution of an accused who is acquitted after allegedly committing perjury at his court-martial and allegedly enlisting the help of a confederate to commit perjury at the accused’s court-martial? The Court concluded that R.C.M. 905(g) does not bar the accused’s court-martial for conspiracy to commit perjury and obstruction of justice, subornation of perjury, and obstruction of justice. The AFCCA rejected the trial judge’s conclusion that the members acquitted him because they believed his testimony. The members returned a general verdict of not guilty, and based on the fact that there were three independent bases for acquittal (innocent ingestion, good military character, and the Government’s failure to meet their burden of proof), there was insufficient evidence in the record to decide the basis for the acquittal. The military judge erred in dismissing these charges. The Court concluded that R.C.M. 905(g) does not prevent the accused’s court-martial for perjury. “[I]n this case, whether the Government found new and direct evidence that the [accused] committed perjury at his court-martial, which would not have been discovered through due diligence prior to the first trial,” a court-martial for the perjury charge comes under an exception to R.C.M. 905(g). The charges arose from different transactions and proving that the accused attempted to procure his acquittal by lying about his cocaine use under oath does not involve revisiting facts affirmatively decided by the fact finder. In dicta, the AFCCA stated that it would be “inclined to find prosecutorial vindictiveness in a case where the accused testified, was acquitted, and was then charged with perjury based on the same evidence that was offered in the first trial, or based on evidence that the Government possessed but simply chose not to use.”
-------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
The use of mistake of fact as a defense has been dealt by the CAAF in United States v. DiPaola, 67 M.J. 98 (C.A.A.F. 2008). The accused and the victim, both petty officers, stayed in the same barracks and were involved in a sexual relationship. The relationship ended and the accused deployed. In August 2004, shortly after the accused came back from the deployment, the accused visited the victim and told her that he missed her and wanted to go out with her. She told him she was unwell and went to rest on her bed. The accused lay down next to her and they “cuddled and fell asleep.” Three days later, the victim returned to her room and found the accused waiting for her. She allowed him into her room and the accused told her that he wanted to have sex. The victim refused. The accused then kept saying that he wanted to have sex and the victim kept saying “no,” but they started “kissing and making out.” They moved over to the bed where the victim got on top of the accused and allowed him to take off her shirt. They continued kissing and then the accused began kissing and biting her breasts. He stopped when the victim asked him not to bite her. The accused then got on top of her, grabbed her wrists, and held them down on the bed above her head. He then reached down and tried to unzip her pants, but the victim was able to get her hand free to pull up her zipper. During this time, the accused kept saying, “Let’s have sex,” and the victim kept saying “No.” He then begged for sex, offering her marriage, children, and his car. She continued to refuse, but they both laughed during this exchange. The accused then rubbed her crotch area over her clothing. Next, he put her legs on his shoulders and “acted like he was having sex with [her].” As this hurt her wrists and legs, she pushed him and “kneed” him. The accused then pulled his erect penis out of his pants and started masturbating in front of her. She told him to stop and he asked her for oral sex. She once again refused, saying that she would “bite it off and spit it at him if he came any closer.” He laughed as if she were joking, but gave up his advances a few minutes later. Before he left the room, he said that “he couldn’t believe that it took so long, about an hour and a half, for [her] to keep saying no, and [for him to] finally giv[e] up.” He was charged with, in relevant part, indecent assault under Art. 134. The specification alleged that he indecently assaulted her “by holding her down on the bed by her wrists, kissing her, fondling and biting her breasts, sitting and laying on top of her, touching her vaginal area with his hand, attempting to remove her underwear, and rubbing his erect penis against her vaginal area, within intent to gratify his sexual desires.” During trial, in both the opening and closing, the defense counsel raised the issue of a “mixed message,” indicating that by the victim’s actions, the accused was unclear as to which acts were permissible and which were not. The defense counsel requested a mistake of fact as to consent instruction, which the military judge refused to provide. The panel convicted him this specification. The issue before the CAAF was did the military judge err while not instructing the panel on the mistake of fact as to consent instruction for this indecent assault specification? The CAAF held that the record contained “some evidence “of mistake of fact and the military judge committing error while not providing the instruction. Furthermore, the error was not harmless beyond a reasonable doubt. The military judge must instruct a panel on an affirmative defense, sua sponte, if the record contains “some evidence” of the defense to which the military jury may attach credit if it so desires. See United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003); United States v. Brown, 43 M.J. 187 (C.A.A.F. 1995). The duty to instruct is not determined by the defense theory, though the defense theory can be taken into condiseration when deciding whether the affirmative defense had been reasonably raised by the evidence. Some of the alleged victim’s conduct—and also some of the charged conduct—was consensual. As such, the “consensual acts could be seen, in conjunction with their past sexual relationship, as creating a ‘mixed message’ as to which acts were permissible and which were off-limits.” The court noted that “[t]he conduct and conversations of the parties during the encounter, as informed by the ‘mixed message’ defense theme, provide ‘some evidence’ that could support an honest (subjective) and reasonable (objective) belief as to consent to some or all of the alleged acts.” Furthermore, the military judge gave the mistake of fact instruction for an indecent exposure specification arising out of the same course of conduct and the accused was acquitted. The court was unable to find beyond a reasonable doubt that the panel would have found him guilty and concluded that the “missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty”-------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
United States v. Johnson, No. 200900141, 2009 WL 2599398 (Aug. 25, 2009) discusses with the issue of indecent language. The accused was in a tumultuous relationship with his girlfriend, and upon their breakup, the accused sent her a text message with the following language: “I hope sumthin happens and ur [fxxxxxx] kidney stones shoot up through ur [fxxxxxx] head and blow ur brains out u [fxxxxxx] bitch I u rot in hell” (quoted from appellate opinion). The accused admitted to one specification of communicating indecent language under Art. 134. The accused admitted to sending the text message and stated that the language was indecent because he felt the words would make the alleged victim believe he intended to harm her. The stipulation of fact stated , “the language was indecent because it is grossly offensive to the military community sense of proper decorum between individuals and that it is degrading, humiliating, mean spirited and outside the reasonable society expectations for conversation between individuals” (internal quotations omitted). The military judge accepted the plea. The N-MCCA concluded that the accused’s plea was improvident. Indecent language refers to “that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought” (emphasis added). In United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004), the CAAF determined that “either definition of ‘indecent contained within the current paragraph of the Manual could form the basis for a charge of indecent language.” The MCM provisions have “two different definitions to measure speech that may be a crime, dependent on the context in which it is spoken” The accused’s language did not meet either definition of “indecent.” He admitted that his text message was indecent because it would make her think that he intended to harm her. The court found no case where fear of harm was a component of the definition of indecency. Additionally, the court found no cases to support the definition of indecency provided in the stipulation of fact. Furthermore, the court could not conclude that a “reasonable member of the military community would be shocked or grossly offended by this profane and derogatory exchange between a couple in the midst of an acrimonious break-up.” The court compared the accused’s language to Negron and United States v. Brinson, 49 M.J. 360 (C.A.A.F. 1998), two cases where the court determined the speech at issue insufficient to sustain convictions, and determined the accused’s speech less offensive than that used in both cases. The court determined that the military judge erred while accepting the plea and set aside findings as to this charge and specification. -------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
The issue before the Court in Kansas v. Ventris, 129 S.Ct. 1841 (2009) was if a statement obtained in violation of the accused’s Sixth Amendment rights through an undercover informant can be used for impeachment purposes? The court held that for procedural violations of the Sixth Amendment right to counsel, the government can use the testimony for the purpose of impeachment. The Court further observed that police officers already have a strong incentive to ensure that they and their informants follow the Constitution, because such statement can be used for all purposes. There would be no additional deterrent to forbid impeachment use, since that would generally be ineffective. The defendant would have to testify, and the statement taken would have to have impeachment value. In this case, prior to trial, officers planted an informant in Ventris’s cell, directing that informant to “keep his ear open and listen” for incriminating statements. When the informant told Ventris that he appeared to have “something more serious weighing in on his mind,” Ventris admitted that he’d shot the victim in the head and chest and took his money and a vehicle. At trial, Ventris took the stand and blamed everything on his co-defendant. The government used the informant to impeach Ventris’s testimony, and Ventris objected. The government conceded that they violated Ventris’s Sixth Amendment right to counsel, however claimed that the statement was admissible to impeach. The trial court accepted and permitted the informant to testify. The Kansas Supreme Court reversed, noting that “once a criminal prosecution has commenced, the defendant’s statement made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.” -------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
In United States v. Blair, 67 M.J. 566 (C.G. Ct. Crim. App. 2009) the accused acting under an officer’s orders, drove a government vehicle to an airport for counseling. On two occasions a week apart, he brought Ku Klux Klan recruiting flyers with him and pasted one to the mirror in the men’s restroom in the airport. Although he was wearing civilian clothes both times, the members of the group counseling were aware that he was in the Coast Guard. Although no one noticed him post the flyers, he could have been noticed by anyone who walked into the restroom while he was posting them. Authorities later determined that the accused affixed the flyers and further determined that he was in the Coast Guard. He was charged with, in relevant part, “wrongfully recruit[ing] for, solicit[ing] membership in, and promot[ing] the activities of the Ku Klux Klan,” “while publicly displaying an affiliation with the Armed Services,” which conduct was of a nature to bring discredit to the Armed Forces. He admitted the charges and the military judge accepted his plea. The court had to decide if the accused’s plea was provident when the military judge failed to elicit sufficient facts to prove that he recruited for the Ku Klux Klan “while publicly displaying an affiliation with the Armed Services” and failed to resolve inconsistencies brought out in sentencing that tended to establish that he was not “publicly displaying an affiliation with the Armed Services” when he posted the flyers? The court affirmed the conviction for this offense. First, there was a factual basis to support his plea. He admitted that he publicly displayed an affiliation with the Armed Services by driving a government vehicle and stated that the counselors and attendees knew he was in the service. He posted the flyers at the airport as a large number of people would notice them. He also admitted that the conduct happened in public, was likely to bring the service into disrepute, and was incorrect. The court concluded that “publicly displaying an affiliation with the Armed Services” includes conduct that takes place in an area available to the public, whether or not another person is actually present. In this case, there was a sufficient factual basis for his plea as there was the possibility that a member of the public who knew him to be in the Coast Guard could have readily seen him affixing the flyers. Next, the court applied the standard provided by United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008) that governs speech offenses charged under Art. 134. A court must first determine if the speech at issue is protected by the First Amendment. The CGCCA assumed that this speech is protected speech. Next, the Government should show the elements of the offense at issue. Since this was a guilty plea, the elements were proved based on his admissions that the conduct was public in nature and had a service discrediting effect. The court also observed that the conduct occurred “on the ground,” and not on-line. The CGCCA held that there was a strong possibility that a member of the public would observe the conduct and take it seriously. Lastly, the Wilcox test needs the court to “strike a balance between the essential needs of the armed service and the right to speak out as a free American.” This needs the court to “weight the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach.” Here, the conviction was warranted despite First Amendment concerns. Considering matters presented at sentencing, including the airport director’s testimony that it “made [him] sick” when he found out that the source of the flyers was an active duty Coast Guardsman, the CGCCA found that “the potential effects, both stated and inherent, of [the accused’s] conduct on the Coast Guard’s reputation outweigh [his] interest in his right to speak out while on government business at the airport.”-------------------Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide
Posts
